THE KROLIKOWSKI LAW FIRM
A PROFESSIONAL CORPORATION
November 21, 2007

Keith and Marsha Radford 350 N. Florence St #A Burbank, CA 91505-3623

Re: Radford v C&P Properties [in Burbank California] et al Dismissal of Your Case

Dear Keith and Marsha,

I am sorry to inform you that your case was dismissed by the Judge. We engaged in a long court battle with the attorney's for C&P Properties over the application of the statute, the statute of limitations and your available remedies. After two motions and several court appearances, the Judge ruled in favor of C&P Properties and dismissed the case. Enclosed you will find a copy of the final ruling of the Court.

Your case is on the cutting edge of the new P.C. § 290.46 laws concerning the application of the statute of limitations. For this reason, judges are all taking different positions on how to interpret and apply the law. We believe the judge was wrong in this case, but cannot change her decision.

You have 60 days to appeal from the date of the ruling. Please be advised our involvement in this matter is complete and we will not take any further action on your case without a new retainer ac agreement.

If you wish to proceed with an appeal you must be diligent in following the appellate rules or you will lose your rights of appeal. You may pursue the appeal yourself "in pro per," contact another attorney or retain this law firm. If you wish to retain this law firm for the purpose of pursuing the appeal, please contact us within the next two (2) weeks to sign a new retainer agreement.

Sincerely,
Kowski, Esq.
27281 LAS RAMBLAS. SUITE 160. MISSION VIEJO. CALIFORNIA 92691TEL: 949.367.3155 FAX: 949.367.3144 WWIU.KROLIKOWSKI-LAWFIRM.GOM

Case Number: EC044968 Hearing Date: November 16, 2007 Dept: A
1. TENTATIVE RULING
KEITH RADFORD V. C&P PROPERTIES #1 DEMURRER

Calendar: 11
Case No: EC044968 Date: 11/16/07

The Demurrers to first and second causes of action are SUSTAINED without leave to amend.

On July 27, 2007, the Court heard the Defendants' demurrer to the Plaintiffs sole cause of action and the Court found that the Plaintiff's action was barred by the one-year statute of limitations set by CCP section 340 for violations of statutes that include a mandatory penalty. At Plaintiff s request, the Court granted the Plaintiff leave to amend in order to correct this defect. Instead, the Plaintiff filed a first amended complaint that removed the cause of action based on Megan's Law and pleaded two new causes of action for breach of contract and for fraud. Under California law, when a Court grants leave to amend after sustaining a demurrer, it is leave to amend only the cause of action to which the demurrer has been sustained. People ex rel. Department of Public Works v. Clausen (1967) 248 Cal. App. 2d 770, 785. When the Court granted the Plaintiff leave to amend after sustaining a demurrer to his claim based on Megan's Law, the Plaintiff had leave to amend only that cause of action. If the Plaintiff sought to add two new causes of action, he was required to obtain leave of Court. Since the Plaintiff did not obtain leave of Court, his new causes of action were improperly pleaded.

The Court finds that the first amended complaint includes allegations that are inconsistent with the original complaint because it changes dates and because it omits allegations showing that the Defendants had served the Plaintiff with a notice to move out after they discovered information on the Plaintiff at the Megan's Law website. When a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the Court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. Colapinto v. County of Riverside (1991) 230 Cal. App. 3d 147, 151. The allegations in the first amended complaint contradict and omit relevant facts that were alleged in the original complaint.

First, the original complaint pleaded that on January 28, 2005 the Defendant served a 60-day notice to move out on the Plaintiff A review of the lease, a copy of which is attached to the first amended complaint, shows that the Plaintiffs tenancy was a month-to-month tenancy that lasted until either party terminated the agreement by giving a written notice of intention to terminate at least 30 days prior to the date of termination. Since the facts in the original complaint show that the Defendants had given Plaintiff 60 days notice to move out, the Defendant had complied with this requirement and had properly terminated the Plaintiffs tenancy. Second, in the original complaint, the Plaintiff alleged that the Defendants refused to accept payment of rent on February 3, 2005. The Plaintiff changed this date to January 1, 2005 in his first amended complaint without explanation.

Plaintiffs cause of action for fraud is also defective because he omitted allegations from his original complaint without explanation. In his second cause of action for fraud, the Plaintiff alleged in paragraph FR-2 that the Defendants on February 1, 2005 claimed that the Plaintiff failed to pay rent as the basis of a 3-day pay rent or quit notice. The pleadings omit the allegations in the original complaint showing that the Defendants had already served the Plaintiff with a notice to move out, which the lease permitted the Defendants to serve when they wished to terminate the lease. Thus, the pleadings in the first amended complaint that the Defendants ousted the Plaintiff for failing to pay rent are contradicted by the allegations in the original complaint showing that the Defendants terminated the lease agreement by serving a notice to move out on the Plaintiff.

In addition, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. Erlich v. Menezes (1999) 21 Cal. 4th 543, 551. Here, the Plaintiff has alleged that the Defendants breached the contract by failing to provide him with the apartment. There are no allegations showing a breach of a duty independent of the contract arising from principles of tort law.

Thus, the Court disregards the inconsistent pleadings in the first amended complaint. The Court finds that the pleadings do not plead a cause of action for breach of the implied covenant of good faith and fair dealing or a cause of action for fraud because the written lease permitted the Defendants to terminate the lease by serving a notice that the lease was terminated. Since the allegations in the original complaint show that the Defendants had served a notice to move out on the Plaintiff, they complied with the terms of the lease when they terminated the Plaintiff s tenancy. Thus, the Court sustains the demurrer to the first and second causes of action.

The Court does not grant leave to amend because the Court finds that the Plaintiff cannot amend these defects by amendment. Instead, the allegations in Plaintiff's original complaint show that after the Defendants learned information about the Plaintiff on the Megan's Law website, they served a notice to move out on the Plaintiff. Since the Plaintiff did not bring a timely legal claim under the provisions of Megan's Law barring harassment of persons identified as sexual offenders, his claim for harassment is barred. In addition, the allegations do not show a breach of the implied covenant or fraud because the terms of the written lease permitted the Defendants to terminate the Plaintiffs tenancy. Thus, the facts alleged in this case show that the Plaintiff has no valid cause of action against the Defendants.